Mark Obbie of LawBeat (Carnegie Legal Reporting Program) finds that Tuesday's breathless New York Times piece by Alex Berenson on Vioxx settlements "screams 'scandal' and 'surprise' where it shouldn't", a problem worsened by the piece's above-the-fold Page One placement. The Times piece holds Merck up to withering criticism for refusing to settle Vioxx cases, but it's not until paragraph seven that readers learn that the company has in fact won most recent jury trials on the drug, and not until near the end of the piece that they get specific numbers: Merck has "won five of the last six cases and seven of the last nine, including one mistrial". You'd think that might put a won't-settle policy in a rather less scandalous light.

As Obbie points out, the situation at present is if anything typical of past mass tort episodes. "Big verdicts for plaintiffs almost never yield immediate riches. Cases always are appealed. Big awards always get chopped down. Defendants always drag their feet." And while the piece quotes plaintiff's counsel fiercely blaming Merck for the protracted nature of the litigation, it is only by inference that readers may realize that the plaintiff's side has its own incentives not to let things come to a head too quickly, when Yale's Peter Schuck notes that a "faster trial calendar might actually benefit the company, which can coordinate its defense experts and trial teams more easily than the plaintiffs can". Some blog reactions: Ed Moed, Jay Dwivedi (buying the Times's slant); Joe Weisenthal @ DealBreaker (not buying it).

P.S.: The Ernst v. Merck case, which Times reporter Berenson relies on heavily and uncritically to give the story its emotional frame, is handled rather less sympathetically by Ted here and here as well as in many other posts.

P.P.S.: Ted wrote this devastating letter in response to Berenson's piece.